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BRUSSELS
FRANKFURT
SHEPARD. GOLDFE1N@SKADDEN COM
HONG KONG
LONDON
April 30,2012
VIA HAND DELIVERY
MOSCOW
MUNICH
PARIS
SAO PAULO
SHANGHAI
SINGAPORE
SY:JNEY
The Honorable Denise L. Cote
United States District Judge
Southern District of New York
500 Pearl Street, Room 1610
New York, NY 10007-1312
Re:
TOKYO
TORONTO
VIENNA
In re: Electronic Books Antitrust liNg, No. 11-md-02293-DLC;
United Stales v. Apple, Inc., el al.. No. 12-md-02826-DLC; and
The Slate o{Texas, et al. v. Penguin Group (U5;A) Inc., el af.. No. 12-cv­
00324-L Y
Dear Judge Cote:
I represent HarperCollins Publishers, L.L.c. ("HarperCollins") in the above­
captioned matter. I \vrite in response to Your Honor's request for the submission of a Proposed
Stay Order with respect to HarperCollins, Hachette Book Group, Inc. ("Hachette"), Simon &
Schuster, Inc. and Simon & Schuster Digital Sales, Inc. (collectively "Simon & Schuster" and
together with HarperCollins and Hachette, "Settling Defendants").
Enclosed herein please find a Proposed Stay Order for your consideration. The
Defendants, the Department of Justice ("DOl") and Plaintiff States have no objection to the entry
of this Order as currently drafted with respect to HarperCollins and Hachette. While the DOJ
has no objection to the entry of this order as to Simon & Schuster. we are informed that the
Plaintiff States do not agree that the stay should apply to Simon & Schuster, which has yet to
enter a Memorandum of Understanding settling with the Plaintiff States. As such, we have
included Simon & Schuster in this Proposed Stay Order in brackets. To be clear, Plaintiff States
have no objection to the Proposed Stay Order with respect to HarperCollins and Hachette.
Further, the Settling Defendants have not been able to reach agreement with Class
Plaintiffs. who have proposed that the stay should be limited to discovery and that
notwithstanding the stay, within ten days of entry of a protective order by this Court, the Settling
Hon. Denise L. Cote
April 30, 2012
Page 2
Defendants should be required to produce to the Class Plaintiffs all documents, data, written
discovery responses, and deposition transcripts that are in the possession of the DO] or any state
Attorney General relating to this action. The Settling Defendants believe the Class Plaintiffs'
proposed changes are inconsistent with Your Honor's instructions during the April 18, 2012
status conference and would be counterproductive given the work facing the Settling Defendants
over the next few months in attempting to reach a final agreement with the Plaintiff States and
other state attorneys general. During the conference, Your Honor specifically stated that, during
the stay period, Settling Defendants would not be "require[ d] ... to turn over to class counsel all
of the documents they have produced to the Department of] ustice." (Transcript of April 18,
2012 Status Conference ("Tr."), at 55:5-7.) Your Honor further indicated that, since the potential
settlements represented a "major recontiguration of the case," Your Honor did not want to order
production of documents as the parties "sort the landscape out." (Tr. at 56:5-7.) In fact, Your
Honor carved out the period from April 18, 2012 until the next status conference on June 22,
2012 "to set up a structure" for discovery. (Tr. At 56:9-10.)
To reiterate, a stay of these actions as to Settling Defendants is appropriate so that
they may devote all their time and energy towards finalizing a settlement with Plaintiff States
and submitting the requisite documents for this Court's approval of both that agreement and the
Proposed Final Judgment filed by the 00.1. This stay should have no material impact on Class
PlaintifTs because the Court has ordered the parties to determine a case management schedule
prior to the next conference set for June 22, 2012 and the DO] already has stated that, once a
protective order is in place and discovery requests propounded, it intends to produce its
Investigatory Materials as part of consolidated pretrial proceedings, which production will
include the very same relevant, non-privileged materials relating to both settling and non-settling
defendants as requested by Class Plaintiffs in their proposed stay order. Furthermore, should
agreements with all fifty states and the DOl's Proposed Final Judgment receive this Court's
approval, Settling Defendants would become third parties in these cases, which would materially
impact their discovery obligations.
For the reasons set forth above, the Settling Defendants respectfully request that
Your Honor enter the enclosed Stay Order.
cc:
All counsel of record (by email)

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